Common use of Return Threshold Clause in Contracts

Return Threshold. (a) For purposes of the Operating Agreement, the Incentive Units issued hereunder shall each have a return threshold (the “Return Threshold”) which shall be met so long as at the applicable time of determination the Investor Cash Inflows and Investor Cash Outflows provide for the Investor to achieve an IRR equal to (or greater than) the percentage set forth for each class of Incentive Units as follows: Class of Units IRR Class B Units 10 % Class C Units 20 % Class D Units 30 % Class E Uxxxx 00 % (b) Notwithstanding anything in this Agreement or in the Operating Agreement to the contrary, the Company shall not make any distributions with respect to the Incentive Units unless and until the aggregate Distributions made to the Investor (and its successors) in respect to the Class A Units that are held by the Investor as of the date hereof exceed $122,473,038 (the “Distribution Threshold”), provided that, as soon as the Distribution Threshold is achieved, any subsequent distributions by the Company shall be made in a manner such that, to the nearest extent possible, the cumulative distributions made with respect to all Units (including the Incentive Units issued hereunder) equals the cumulative distributions that would have been made with respect to all Units (including the Incentive Units issued hereunder) in the absence of this Section 3(b). The intent of the limitation set forth in this Section 3(b) is to cause the Incentive Units issued hereunder to constitute “profits interests” within the meaning of Internal Revenue Service Revenue Procedure 93-27, and the terms of this Section 3(b) shall be interpreted in a manner consistent with such intent. Notwithstanding the foregoing, the holders of the Incentive Units shall be entitled to receive Tax Distributions (as defined in the Operating Agreement) pursuant to Section 5.10 of the Operating Agreement without regard to the provisions of this Section 3(b). Nothing in this Section 3(b) shall affect or limit the ability of the Company to make distributions to its members generally.